tv Key Capitol Hill Hearings CSPAN May 6, 2014 6:00am-7:01am EDT
the victim witness liaison, which is listed in the civilian and military lines of the slide is designed to make sure that the prosecution process get translated to the victim in a way that makes sense and keeps the victim engaged in the process. you can see the individuals in the military assigns throughout these different processes. it's about the integration of investigators, prosecution, and the support victim advocate we assign as they move through the criminal justice process or observe the criminal justice process when the offender they named in the report case moves ahead. okay. i'm going turn to russ now to talk about this. he's our investigative expert. he has almost 40 years of law enforcement experience education, investigation, and
consulting. he's chief of the u.s. army's police school behavioral sciences, education, and training division. he has been an important leader on the issues for some time. has been the architect of our responses. not only the military but civil sector as well to investigations. i would like for him to flag some of the issues he thinks are most important here. do you want to come up here, russ? i'm going ask him to talk about what is most important here and i'll run through the slides. he'll correct me as i get the language wrong. it's been an honor and privilege to work not only with the subcommittee but the great staff and leadership of dean hillman as we moved along. what has been equally fulfilling is go across our nation and look at all the professionals both military, civilian that are working hard every day to get after the most difficult scores we call sexual assault. i'm highlighting some -- i'm going to do an overview of these
and get into the detail as we go along on the investigative recommendations. i want to echo major general snowe's assessment it is a dynamic moving train. the way we're investigating sexual assault 40 years ago is far different than today. the way we were investigating 10 years ago is different than today. five years -- every year we seem to be getting better and better. what we're realizing is that investigating sexual assaults is far more complicated, far more difficult and more biases than the homicide cases. they are easier to work than your typical alcohol facilitied sexual assault. than the one-on-one sexual assault. one of the terms is he said she said. there is no such thing. there's far more information and far more victims and far more offense and offenders we need to look to. as we look across the spectrum
and look at the great agencies out there in the civilian world and compared them with the great agencies within the civilian world, i'm going add a couple more terms to the chart. we have the mcio military criminal investigationers to confuse the term. the people that work within the investigative organizations are agents. we confuse agents and investigators. you'll see that. we have a three-tiered law enforcement response system. we have patrol whether it is military police in the army, security forces in the air force, some of the other security forces. military police in the navy, coast guard response systems. that's the first here. our patrol are generally told and trained to respond. they are not investigators. they will not do anything other than protect the crime scene, making sure the victim is safe guarded. make sure everything is safe and make sure people get to the
right places and the investigators notified. the second tier is the army military -- the navy calls master of arms and also what the marine corps. and navy calls -- there's a difference and u.s. army cid agents. it handle the vast majority of misdemeanors. and also some felonies. up until the repeat changes that congress made for the military criminal organizations. the security force investigators and some of the navy investigators were handling some of the nonpenetrative crimes. congress said no, we want all sexual assaults to be investigated bitçó military criminal investigations. rhyme hi-- i'm going highlight
couple of things i feel strongly about. certainly the volume of cases from even the last several years has increased exponentially. at a time when the air force and the navy were told you're going shift a big portion of the sexual assault investigations to the mcio. the reports have gone up, in my hope. i hope it's the hope of everybody in the room. continue to see a significant rise in report of sexual assault. what we would like to do is revisit the opportunity to maybe bring some of our investigators and our second tier folks under the officers of the military criminal investigationive organizations to conduct some of these cases. we think it might provide some relief. some shares of the resources.
we have a significant amount of training we do already highlighted. i think it's in the training that makes a difference between how our agents see the crimes and complexity in alcohol facilitated.çó the whole spectrum. the neuro science we're bringing in. i will say that navy criminal investigative service, air force office of special investigation, army criminal investigation division and also the coast guard investigators have done a tremendous job in meeting these training requirements. the big difficulty we have is oftentimes advanced training is taken out of hype. the services have to give up some funding. there's only so much in the pie.
one of the concerns is as we progress and the need are advanced training continue. when we take the eye off the ball. someday we won't have hearings and all kinds of interesting committees and to try to get at we're going move somewhere else eventually. what our concern is funding may move somewhere else. congress decided we're going give specially appropriated funds to be used only specially for family advocacy. we ask for the same consideration in training, advanced training for investigators and agents. if we don't have that, our concern is now we're taking money out as we are shrinking the military. the budget is shrinking. there's a lot of competitive ps. we ado we don't want some of the money to go meet other needs.
in a civilian world if i'm a detective and interviewing somebody about underage drinking or smoking marijuana or other misconduct i really don't care about is as a detective i'm not going to do anything with. i'm not going stop and read the person their rights. generally i'm not going to for a couple of reasons. under miranda, they have to be custody. if i'm a official of the government and suspect misconduct. i must read someone their article 31 rights if they're a member of the armed forces. it creates two problems. they're not in custody but might feel like it when they have the rights read. i'm talking to a victim who is sharing the most difficult thing, the most intimate thing
that happened to him or her, and right in the mid of that they might bring up something i suspect they might have been involved in a commission of a crime. a miner crime. excuse me, i need to stop for a moment and advise you of your rights. the chilling effect it has on everybody is amazing. what that does to that victim at that point in time creates just a profound overwhelming sense of what do i do now? i reported a major crime. i reported a crime that the department of defense wants to know about. i'm volunteering my information now you're reading my right. so we took a long hard look at that and got recommendations in that area as well. these are developing a list of secretary of defense would accept as in the area of sexual assault, you know, miner misconduct that he would be allowed to give immunity for our some other i'm not sure how we would do this.
a list as an agent i wouldn't have to read somebody their right for the type of misconduct. also, maybe looking at article 31 for minor misconduct in the area of sexual assault. the other issue that we have is case termination. as we have seen with the comparison dean hillman mentioned it's hard to compare not only between military and civilian but within the services. each one of the services look at case determinations a slightly different way. for example, the army unfound cases based on some after coordination with sja make determinations the navy and the air force do not. they basically wait until the case gets to the commander. the commander decides whether it's unfounded or not. it goes in the mix. what we're recommending is look at the uniform crime report. which almost every single uses. we think it will clean up
problem areas. we don't believe the unfounded cases we're getting are basis or false. what do most people think when they hear unfounded? there's a couple more and then i'll be done. one is in the area of the saying. i have a lot of good sayings. nurse examers. and we can't have one size fits all under the fiscal year 2013 or 2014. there's a requirement if you have an emergency room with 24 hour seven day a week, you know, open that much there's going to be -- as we look at small, medium, and large. if we look at the navy with the ships and everything else. it's impossible. even some of our medical centers don't have same nurses that are large installations.
fort hood, example. they have a capable system offpost where they go to the qualified nurses and get the same product experience. we were told that the >> maybe look at make at recommendations where one size fits all, because it certainly doesn't. along the same lines, we went to the crime lab in georgia and talked to a lot of experts. i will tell you our defense forensic science center is nothing short of amazing, in who they're doing, and the research they're doing for touch dna and other things we'll have in the future. but all of the people we talked to, all of the experts we talked to said no more plucking. >> currently there's a requirement to pluck pubic hairs and body hairs and head hairs, the experts that we talk to say
there's no need for that. there was back in the '60s and '70s and maybe the '80s. but no more plucking. that's one of our things. we'll get a bumper sticker for that along the other thing to take out, in restricted reporting, we want to holdn8 fendoffender accountabi. currently our database doesn't put in subject data, so if we have a multiple victim case at an installation, we have no way to go back and say, hey, has there been some restricted reports, unrestricted reports, so we're going to make recommendations along those lines. but another thing that we're going to recommend is unrestricted reporting. currently if a victim reports to law enforcement in any way, shape, or form, there's an
automatic investigation. and we went out and ashford oregon and some other police departments have some really good best practices. if a victim wants to talk to a detective, they may determine they don't want an investigation and these police department will not conduct an investigation. we want to have the same opportunity for victims to am can forward, ask us questions about the investigation, about how we're going to do this and maybe gain some confidence with them. so what we're asking is the restricted reporting provisions be relooked at to allow a victim or victim advocate to talk to one of our agents, tell us what happened, share with us what happened, give us the information. and after they talk to us, make a determination where they want the investigation to go forward or not. we think it would make it easier to report and answer questions along the way, instead of a victim being told by some other party, you don't have to talk to
law enforcement. which almost sometimes sets up a negative. so we're asking for consideration on that. so that's a very important aspect. and what we have found in a sense is that victims do want to get more information. and we want them to make a more informed decision before they go forward, move forward. those are some of the things i highlighted, and we look forward to any questions and comments and give and take. but it's just been a really rewarding experience for all of us and thank you for your leadership. >> thank you. >> thank you, russ. judge jones, i'll make a suggestion here that i walk through the recommendations with one from 7 to 22 and then see if the panel has any questions about our survey. >> that would be a great idea. >> about the surveys or the investigative part, before we move on to the rest of this. so the slide that was up here
behind russ as he spoke and he highlighted much of this, so you have a good framework for understanding our recommendations. the first one says the secretary of defense should direct that non-special victims units agents coordinate with special victims unit agents in all sexual assault investigations. this is recognizing the distinction between civilian agencies and military agencies. but having special investigators handle all of these investigations regardless of severity is challenging in terms of resource allocation. so this recommendation points in that direction. this does as well. this is another point that their strand mentioned which runs to the importance of training. the secretary should direct continued careful and select direct training of agents, using civilian agents because of their experience wherever possible. we want to make sure we have
competence and commitment in those who are investigating, supervisor agents to ensure continuity, and finally that we do -- we are attenditive of the need to reassign. these cases can create burn-out. and we need to protect the responders so they can be there for the victims who come forward. this runs to our point about the importance of funding. we recommend congress appropriate centralized fund for mcios to provide advance training. military investigator training is more robust than our civilian counterparts for the most part. however, continuing that and maintaining it is important. we want to target continued training on the importance of reducing bias and eliminating bias. because that's so long been a challenge to victims who come forward and encounter that. finally, we want to avoid the
language in reports in reports and interviewing that implies a different event happened than what the victim experienced and we know how to do that now. we understand what those best practices are and want to make sure that we train our investigators on that. next, this is about the response, the different types of responders to incidents in the military. we recommend the secretary direct the role of military police investigators continue to protect the crime scene, ensure safety and well-being and to report to the military criminal investigative office. civilian officers some discretion. military police do not have discretion and have to refer. this ensures a specialized processing from the outset that improves the -- that should improve the experience for the victim in what is inevitably a trying process and improve the response overall and the potential success of a prosecution. next, this runs to the increasing case load that mr. strand mentioned too.
as numbers increase, the burden on investigators does increase as well. we recommend that there be a little more flexibility in resource allocation, so that less severe incidents of sexual assault, that's a very broad term in the military because of the extent of behaviors that are prosecuted as sexual assault. the minor incidents be investigated under the supervision, under the oversight of special victims unit agents. so the increased reporting and the requirement for investigation of all the article 120, the military sexual assault statute has created an increased case load. we need to give flexibility here for better resource allocation. that's what this recommendation runs to. next, this came up repeatedly as we talk to investigators. we need a standardized procedure to streamline and expedite the
military criminal investigative officer's use of this investigative technique in occurrence with the law. so this is very effective. we mentioned our visit to the forensic labs and how impressive the capability is, but we need to recognize, too, that forensic evidence is not available in many, many cases. and that getting information from the individuals involved is a key part of what the investigators need to do. these pretext phone calls and text messages, the social media investigations that need to ensue are important. right now it's not standardized, there's different procedures. we want a streamlined way to make this happen in the military as it does in civilian agencies so we can investigate properly the many cases in which a sexual assault is not reported so fast, that there's forensic evidence that's available. next, this goes to a critical point in the investigation of a sexual assault. and in the success of responses
altogether. this also runs to the confidence of victims in reporting and our efforts to increase the reporting rates for those who experience sexual assault in the military. this goes to collateral misconduct. which mr. strand mentioned. so we recommend the secretary standardize the policy regarding rights advisement during the interviews of victims of sexual assault when they disclose minor misconduct. first bullet points out civilian investigators do not advise of rights because the law does not require them to. the potential prosecution for collateral misconduct is a barrier to reporting and is a barrier to investigation. the current policy affords the convening authority dretion to waif criminal liability for minor misconduct. and practices right now vary as to how article 31-b is implemented by investigating officers. we believe there should be a standard policy. we should make it clear to our
investigators what they should do and make it clear to victims what they can expect if they come with the courage it takes to report a sexual assault. the second part of our recommendation here is in realization of the fact that article 31 does require rights advisement. right now unless it's modified. and we want a procedure that grants immunity for victims who disclose collateral misconduct along with a list of qualifying offenses and we want to consider recommending change -- that congress change article 31-b. this would remedy the confusion around the immunity that's available to victims who are potentially liable to prosecution for collateral misconduct. we want to protect the virightsf the victims there and get our understanding of article 31 in line with whatñi the law requir. next, on the site visits, we realize that the sequestration
and the furlough have had a negative impact on the effectiveness of investigations. and we recommend that to the extent possible, the secretary should exempt dna examiners and other examiners at the defense forensic science center from furloughs in the future. this next recommendation runs to a point that i raised at the beginning of this briefing and that mr. strand also mentioned, which is about collecting information. we recommend the secretary establish a policy that will allow us to collect information about person's identified in the reports of victims, even if those victims choose to submit a restricted report and not engage in the unrestricted report and investigative process. so this means that the sarks, the sexual assault response coordinator would enter information into the existing database. it would be available if that offender is identified in another reported assault. right now that doesn't happen and there's no information that
gets provided. we think this would enhance our ability to build on the information that we get through both restricted and unrestricted reports. and this next recommendation runs to the same thing about a change in restricted reporting policy. here we'd like to allow a victim who comes forward with a restricted report to talk to an investigator without triggering the unrestricted report and the degree of disclosure that involves. so right now a victim cannot talk to an agent without making an unrestricted report. this would allow the victim to speak to that investigator with the protection of a victim advocate. this innovation in military response to sexual assault which gives a victim an attorney early in the process. o law enforcement could not initiate an investigation
without a consent. it could increase the conversil rate from restricted to unreporting and it could increase the intelligence, the information that we're able to collect from restricted reports, in addition to what we get from unrestricted reports. next is an audit. like we think there should be some outside experts to advise on us on the surveys that we create to make sure they're right and workplace assessments. we also think there should be an external audit of dod sexual assault investigations. we do internal checks right now. civilian police agencies use external audits, we think that would enhance our understanding of what we're doing right and what we're not. we also recommend that the secretary direct mcio to coordinate and standardize with trial counsel. between investigationors aors a prosecutors. we don't want reports going to
commanders before everything is being investigated. we heard some instances that that happened. service procedures vary on this particular rxctice.xd clarification on how the coordination should happen and all the investigation gets done before the convening authority is faced with a decision about what to do next. next, this runs to our definitions here. so, we recommend that the secretary direct that the uniform crime reporting standard for unfounding be adopted across the services and department of defense. there's no reason we could see to not use an established civilian standard for what constitutes a crime that is unfounded. unfounded means false or baseless. it should only be used in that. we shouldn't use other definitions or fail to define that tomorrow when we use it in our reports. second, this is about the decision to unfound. that decision to unfound should be done in coordination between investigators and prosecutors. that's the recommendation that,
that we ought to have that take place with lawyers and investigators involved who understand what that assessment means about unfounding, rather than the unclear process and unclear authority to which that decision is devolved at this point. okay, we're almost through investigate recommendations. three more here. then we'll take some questions. this is about sexual assault nurse examiners. we recommend the secretary direct the surgeons general of the services to review the new requirements for a sexual assault nurse examiner with 24/7 emergency rooms. because we don't see that as the only way to meet the very important requirement that we have qualified staff to meet the demands. the integration and leveraging that we think needs to happen with civilian authorities, applies to sanez. we think the ndaa requirement right now is too narrow for victims to find the best
services they can going forward. although we're talking about this as a very big problem and it no doubt is, we also need to recognize that smaller civilian jurisdictions and small military installations may not have enough incidents of sexual assault that they maintain personnel with appropriate expertise. you may be trained in your unit as a victim advocate, and have that job for two years and never meet a single victim. we need experienced people with fresh expertise. like trial and defense counsel tell us their skills are perishable. we need to have enough of a case load to maintain expertise. this enables to leverage more effectively the civilian expertise that's out there. russ talked to you about this already. in order to protect victims from unnecessary intrusiveness in the sexual assault investigation process, we need to end this
process and we recommend the secretary of defense do that now. and then the last recommendation in our investigation section is about collaboration on safe training. so here we think the secretary should direct a working group to coordinate efforts and leverage expertise to create a course for military and d.o.d. practitioners. we think that this is a place where common experience and expertise across the services would help. we think that there could be a joint course at the joint medical, education and training center. portable forensic training, joint refresher courses that run. we have different programs that try to meet the same goals here. and we recommend collaborating here throughout whatever working group would recommend so we don't duplicate our efforts in each of the services, but instead build a common ground of expertise, in the tip installations and cases that come forward to us. okay, so judge jones, i'm going to pause there and see if there
are questions on either the survey or the investigative part of our recommendations. >> jim? >> thank you to the panel and thank you, dean hillman, for what looks to be a terrific set of recommendations and really detailed and rigorous approach to this issue. and i personally see a lot in it that looks like it's really worthy. couple of questions. three questions, actually. one more than a couple. on slide 34, you talked about outside au. any idea who that might be, who's qualified to come in and sort of sit in judgement on what dod would do? did you have -- i'm just seeking additional information, what you had in mind there, in terms of who outside auditors might be?
>> yes, sir. when we looked at some of the outside agents who they were bringing in, mostly victim advocates, looking at -- one city, for example, had a victim advocate review on every single case. one other city had victim advocates reviewing the potentially unfounded cases to make sure that nothing was missed and things like that. just getting another professional look at it. so much like in our collaboration with prevention, like with rain and peekar and some of the other nationally known organizations, perhaps reaching out to some of them and some of the victim advocacy groups and folks who do multidisciplinary training, some advocacy there, taking a look. not a specific organization, but some organization to periodically look at a sample of our cases. see if they see any trends that we might have missed within a department, whether it be from
the investigative side, the prosecution side. because really, right now when dodig is looking at an audit, they're looking at procedures, making sure that we followed the rules. but we don't have any real good outside organization looking at to make sure, from another perspective if we missed anything on the victim side or the health side. we're not sure what organization, but we would look organizations. >> i do wonder if audit is the exact term to sdib what you're describing there. but the idea of collaboration with outsiders seems like a good one. on slide 29 and 30, i think, there are -- there is the sort of fundamental issue of collateral ñi[k;misconduct, and wonder beyond the procedural recommendation that you're doing, that secretary of defense start to standardizeñiwsk÷ and m this, which i think could be really helpful. if you had further thoughts on how you would categorize minorx%
the obvious difference between civilian society and military society in the role of what you all have characterized as minor offenses. >> what we've looked at, sir, is things like, the biggest one is under-age drinking where most civilian police departments really don't -- iplz=?i qnmea care, but they're not going to start an investigation or hold anybody accountable. certainly in the military, every violation of every order and every law is really important. because we have good order and discipline. so separating out, and that's why we asked for the secretary level to do it in conjunction with leadership. but we saw things like under-age drinking. maybe missing a formation because they were doing something else. maybe even some marijuana use. we don't know what that list would look like, but we know things in comparison with what civilians would not be concerned with, that would inhibit people
from coming forward. other things, like having consensual sex is a violation often times. so maybe it was a consensual relationship that went non-consensual. there's a huge barrier that now they have to admit they had a relationship that led to rape and some of these other things, that now they can't come with without review of that potential misconduct, from the criminal justice side, and administrative repercussions from those. under-age drinking, maybe violations of some of the other regulations and policies may be appropriate. >> so i think that the challenge will be in your own use of the word minor and your own characterization of all these things as really important to reconcile that bridge between minor and really important. the last question i had was
slide 36, the conclusion that mcios and trial counsel should make the decision about whether something is unfounded. and i wonder what role do you see for the commander in that decision-making process. it doesn't mention a commander. so i wondered how you all were thinking about that. >> sir, when we were looking at the civilian decision-making process, you know, obviously -- and we are different. they don't go out to the manager of walmart and things like that. but significantly different is, when we get done with the investigation, we want to make sure that it meets the elements of proof. we want to make sure that we have, you know, that we have violations that we can report before it gets to the commander. we don't see any utility in the commander weighing in on whether it's founded or unfounded because that commander has to make other decisions, not whether the offense occurred, but what to do now, when an investigation substantiates an offense. one of the problems that we've
seen along the way is in the variety of ways that we determine unfounded. if a commander determines something to be unfounded, does that mean it's baseless? not necessarily. does it mean it doesn't happen? not necessarily. it goes the whole spectrum. we'd like to refine that and institutionalize to where a trial counsel and an agent, or an mci organization looks at this and says, do we have enough to determine if an offense occurred? and then if it occurred, do we have enough to determine within probable cause that this person did this? right now, it's all over the map. for example, cid unfounds reports by the organization. that's compared to other services and that unfounded report rate is significantly higher. but does that unfounded report mean false or baseless? unfortunately, it doesn't. it could be a whole spectrum. so we want to standardize that
and dabtake a look at it. but we didn't see the need for the commander fb part of that case determination process. we want to compare civilian founded and unfounded rates. it's much cleaner and easier to grapple with. >> thank you. >> you're welcome, sir. >> liz? i have a question to follow-up on whatxd admiral hawk asked. when does trial counsel get named in connection with these proceedings? at the investigative stage? >> yes, ma'am. generally in most of our services, one of our recommendations, we quantify what that happens. generally within 24 hours that trial counsel will be notified, be involved with the case. most of the services that trial counsel is involved from the very beginning. in many cases, that trial counsel will go to the office and maybe even view the interview, start looking at the
evidence that we have from the very early on stages. >> like your recommendation would make it requirement? >> yes. >> -- to all the services draw counsel? >> that the trial counsel be notified within 24 hours. >> and regard to the collateral misconduct, what do you see as the -- or did you look at, better question. did you look at any possible down side of eliminating the collateral misconduct in prosecution for misconduct in all cases? if so, what did you find. >> that's sticky. some of the ramifications, although we have no evidence, but it could be if i've been involved in collateral misconduct and i'm going to be in trouble, say i was smoking marijuana or under-age drinking or having relationships with somebody in a combat zone, a violation of general order number one.
some individuals may say, if i say i was raped i'm going to get out of trouble for that. so that's a risk. that's something we've considered and something that we should continue to consider. but i don't think we should be a barrier to -- >> is that the only risk you saw? >> that's the only one -- [ inaudible ] -- are going to be tied into some level of accountability. you know, so i think that during the course of, you know, i know that major general snow had mentioned that they were going to put greater emphasis on prevention. but if prevention efforts kind of highlighted, you know, the dos and don't in behavior in order to ensure that you do not assume greater risk to yourself, do we lose some level of
accountability and teeth to those prevention efforts, if we fail to highlight that? >> sure. that's a great question. ma'am, what i've seen the services start to do, when they're tying prevention efforts. if you don't want to be a victim, don't do these things. they're tying it in. if you don't want to be a victim or accused of sexual assault, excessive drinking, under-age drinking. so we're looking at all parties involved. to where if you want to reduce your risk, these are the prevention efforts you're going to take. so i don't see it as undermining. i would have three or four years ago, but the way the prevention efforts are now going, it's cumulative. we're not just looking at a gender, and we're not just looking at the victim or a suspect. we're getting prevention efforts into both at the same time. i think that might mitigate some
of that. >> just one quick question. thanks, harvey. without going into -- well, is victim's counsel helping this situation, short of establishing procedures to grand immunity? in other words, if the victim already has counsel, have you seen any processes that would indicate that if the victim's counsel is able to talk to the interrogator and/or the trial counsel, probably more so the trial counsel, understandings can be worked out and there won't be a problem, and the understanding may simply be between counsel. we're not going to prosecute until the conclusion of this process, you know, the victim's whatever happens, the prosecution, et cetera, trial,
or allegations, trial, at that point, we will review it and it may well be that there will be no prosecution of the collateral misconduct? is that what's going on now with or without now with victim's counsel? what's happening here? >> the early reports are that the special victims counsel are helping. the difficulty is that the trial counsel doesn't make a determination whether something is going to be prosecuted or not. the trial counsel doesn't make a determination whether the command is going to hold that service member accountable. >> does not? >> does not. >> right. >> so if you're sitting in a room, basically you have to get the chain of command involved right away. when you get the chain of command involved, basically you have to stop what you're doing, you have to stop all the process and procedure. right in the middle of what sometimes can be a very emotional interview, emotion thing, then we have to stop them because they were under-age drinking. that basically would stop the process. and does stop the process until
can make those decisions and those qualifying remarks involved. and that's very problematic. so that's why we're asking for a review of a potential list of what would be considered minor collateral misconduct, so that we would just be able to bypass that whole scenario and just, okay, i'm not interested in that, i mean, it's part of the case, it's part of what led up to this, or what happened afterwards, but we're just going to like, every single civilian police department, we're just going to go forward and we're going to continue on with the investigation of that very, very serious report. >> ma'am, i'm with you and agree that i think the special victims counsel will aid in this problem and try to help us sort some of this out. >> would you speak up just a little? >> sure. i'm with you. i definitely agree the sbcs will aid in this problem. it's a complex issue. i think we'll make recommendations about involving the judge earlier in the
process, that might help too. getting requests for transactional immunity early in the process. we're identifying a very complex issue. it needs to be studied to look at how to do this. whether or not we'll be able to identify a list, i have some concerns about because i think each case is so factually specific that you're going to have to deal with those facts. and in with trial counsel and special victims counsel, they'll have to decide whether this is something that we can deal with early in the case and whether or not there may be some sort of immunity that needs to be granted early or a decision made not to pursue the collateral misconduct. so i hear you, i think it's a complicated issue. you know, whether or not we can really get a list, i'm not sure we're going to be able to get a list of minor misconduct. because -- >> no, it would be very
difficult, it seems to me. it is going to be case by case. >> that's what i think too. okay. >> just to be clear, your honor, the sub committee's recommendation is they establish a procedure to grant immunity and that be accompanied by a list of qualifying offenses. what we see happening on the ground right now is very uneven process, that sort of grants immunity to victims in a way that's not in accordance with what the law requires, with rights advisement and the way the investigative process is ensuing. so right now, what's happening is -- the dod policy wants to have this victims have the confidence to come forward despite this collateral misconduct, but we just don't have consistent processes right now. so that's the first part, to standardize that policy. the second part is to make investigators and victims on firm ground as they go through the process of interviewing. >> as a practical matter then,
would you be sulging that the trial counsel would be able to decide whether to grant that immunity on the spot? or is that meant to be automatic? or are you leaving that to the -- >> [ inaudible ] >> -- some worried about a shift away from the convening authority's power, but to have the convening authority make this decision, it happens to fast to get it -- to get that far away from the interview and the initial contact that the victim has with the response of the system. and so our recommendation was that the immunity happen in a way that's not -- [ inaudible ] >> and i would say that when we had this discussion in the sub committee, i think it's fair to say that we envisioned a very short list that addresses, really the three or four, you know, major types of collateral
misconduct, minor collateral misconduct that arise with victims. one clearly being under-age drinking. one service prohibits all opposite sex members in their barracks. so that's something. so any time something happens in one of their barracks, somebody's in the wrong barracks and that's minor collateral misconduct. i believe that's what we envisioned in some of these, as russ said, the violations of general order number one, or being in a location where you're not allowed to be outside of the barracks. >> judge jones -- >> the biggest difficulty we see, ma'am, is that it interrupts the investigative process if we have to stop and then wait a day or two while people figure it out. what happens with that victim in the meantime? what happens to the evidence, to all those other things? can be very problematic. >> judge jones, this runs to your concern. we do have a list, the finding
which is on page 7 of the interim report says for the last ten years, dod documents used the following list for the most common collateral misconduct. under-age drinking or other alcohol-related offense. adultery, fratternization, or violations of certain regulations or orders, the likes of which mr. strand referred to any sexual activity, for instance. so it is a short list. >> and the other comment that -- >> mr. brian. >> yes, thank you. i was going to point that out too. so thank you, professor hillman. on this recommendation, it's a thr three-prong recommendation when you get to the narrative part. so it's not as flat a directive as that may appear on the slide. there's a process which we recommended in the three recommendatio
are a suspect. it's the person's right. you either violate their rights, the process that you just described. it's not just in law enforcement and the legal community, it's not just the commanders that have to understand where that line is. it's going to be every service member in a barracks or coming into a unit. if you don't say, look, you're talking about a sexual assault that potentially involves drinking. that's not what we're concerned about when you walk through the door. whether you're in someone else's barracks and you're in a service that says you can't be there, or it's in violation of a general order, or it's the same-sex type of a crime, if you don't keep that list short and clear, you're going to have a communication problem with a victim that walks in and says, i thought i had immunity if i came
to talk to you. at that time, the initial investigation, it's traumatic. you don't know what shape that person is in. so i understand the concept and wanting to protect them. i also understand not wanting to violate ñii]somebody's rights because you don't understand it's important and you want to have immunity. service member understands, stress for a victim coming through the door. >> i think it's equally important for the investigators to know what they have to advise rights for. if they have a list in conjunction with the secretary of defense, we got to let them decide, we're recommending that they decide. and also whether or not we just need to make some fundamental changes to article 31. and i would also point out that ncis' practice obviously as the lawyers in the room knows,
results in use of immunity for that particular victim. so it's already in effect for whatever the size of what 300,000 people in the navy, something like that. >> but it's in effect in a way that doesn't comply with the laws as they're currently written. so what you're saying, it's a suspect is what triggers it. i'm not saying it's wrong. i'm just saying that's it is effect of what's being done. >> that's why in fairness to our sub committee and the very been asked about this, that i wanted to point out that we -- it's a three-pronged recommendation which starts out with coming up with some uniform practice within theçw%ñi
issue. i think she -- >> oh, okay. >> you all have, i forget the statistics on the number of witnesses that you interview, but it was staggering. it was a lot. with this particular issue, to what extent were commanders -- was this discussed with commanders? the issue being collateral misconduct. were commanders a part of your information-gathering of that on this issue? >> we talked to commanders about their overall impressions of the
process and what their role was in stopping this, but we did not question them specifically on this issue. we talked to investigators and to the victim advocates about this issue of collateral misconduct and to trial counsel, with their challenges in getting the information they need through the investigative process. >> thank you. and judge jones, if i may, one of our findings, admiral was that the military services not support automatic immunity. and as professor hillman said, there were members of our sub committee who were also having problems with anything that used the word automatic. >> oh, i'm sorry, you go ahead. >> on the victim services subcommittee, this was one of the issues that we struggled with the most. in fact, it was one of the few recommendations and findings where the subcommittee was split. the majority came out with a need to study the issue more, because we didn't really feel that we had enough evidence to
make the right kind of recommendation. again, we were split and we'll hear more about that later on. let me ask you, did you feel that you had enough evidence before you to make the kind of recommendation that you have now, or would you have liked more on this particular issue? >> it's a great question. we do have evidence that this is a problem for a successful investigation and prosecution, and a problem for potential victims feeling confident enough to come forward. that for me personally then, not speaking for the reasons that everybody came to this conclusion on the subcommittee, but for me personally, that's enough to decide there should be something taken. the prosecutions for collateral misconduct in sexual assault cases are vanishingly small. they're not prosecuting that in most cases right now.
this could potentially this could tie the hands of some commanding officers in some instances where they would want to prosecute a person for a violation of orders that was part of a series of events that led to a sexual assault. i don't want to pretend that that couldn't possibly have that effect. but the huge majority of cases are alcohol facilitated sexual assaults. talking about under-age drinking or violating orders relating to drinking policy, which will become an issue because of the more aggressive alcohol policies that i think we're likely to recommend as a panel going forward, and because of that, we need a list that communicates to investigators and to victims and to everybody else out there, including offenders, who see the collateral misconduct of victims as a way to prevent them from disclosing what happened and coming forward. so we did think we had enough evidence on that. >> i also have had the unfortunate opportunity of having to stop a victim in the middle of talking about rape and advising that person of their
rights. and i speak for all the agents that i work with and talk to, it's one of the most difficult things we can do. there's no way to make it easier. there's no way to say, well, you know, i've just got to follow this procedure. i'm not really thinking you're a bad person. we're not allowed to do that. we have to whip out the rights advisement and talk about it. it changes the nature of almost every investigation once we advise the victim of their rights, regardless of how we go about doing it. if we had to wait for the command to get involved and decide well, we don't have to read the rights, yes, we do, it really does have a chilling effect. that's what we heard over and over again. >> if i could say one thing, mr. brian keeps talking about this, on recommend 13-c, we talk about sending it to the joint services committee to examine three different possibilities too. so i'm tending to agree, i think we do agree there is some need to examine it further.
>> thank you. >> judge jones, i think that we've sort of closed the loop on these first two sections. i think that, first, let me mention that i compressed the recommendations with the -- and our staff helped me compress the recommendations to put them on the slides. so the actual text of the recommendations and the interim nature of them as they are is in the documents that you have. those are more precise elaborations of what we're thinking. the slides don't have that level of detail, which was a decision to not put too much on the slides. >> understood. >> and i think that we can actually, judge jones, if we take a ten-minute break, we can finish the training section of the next part here before the
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